Chapter 6

Pictures and Videos in Public Spaces

The digital age has drastically changed the way we take and share photographs and videos. Today, anyone, anywhere, can use smartphones to photograph and take videos in public spaces — as opposed to inside a home, vehicle, or any other personal and intimate space. These photos and videos can be shared instantly on various social media sites.

In light of what we’ve learned so far in this book, the following questions may spring to mind:

• What rights do you have as a photographer?

• Are you free to distribute photos and videos on the Internet?

• Are you allowed to take a photograph anywhere, of anyone?

• What restrictions are there on photographs taken of you?

• What rights to do you have to refuse, or to stipulate that the photos not be circulated?

This chapter is not meant to be a definitive guide on the dos and don’ts of taking photos and videos in public places. Nor does it constitute legal advice. Rather, it poses three basic questions to keep in mind.

1. Do I Need the Person’s Permission?

In Canada you do not generally need permission to photograph or take a video of a person for the purposes of personal photography. However, for activities considered to be commercial, privacy protections usually require consent.

Privacy protections set out in the federal Personal Information Protection and Electronic Documents Act (PIPEDA) apply to personal information collected in the course of commercial activities. In most cases, PIPEDA requires a photographer to obtain consent from an individual who will be identifiable in a photograph. This requirement does not apply to photographs taken solely for journalistic, artistic, or literary purposes.

You do not need permission if you’re taking public crowd photos that do not focus on anyone in particular, but on the crowd more generally.

In the United States the rules are much looser. There is no distinction between commercial and noncommercial use.

“The United States has always been among the most, absolutist (countries) on free speech,” says Jay Stanley, Senior Policy Analyst with the American Civil Liberties Union’s Speech, Privacy and Technology Project. “When you are in public, and you’re in a place where you have a right to be, you have a right to take photographs of anything that is in plain view. Our courts have found that that is a First Amendment right, a free speech right. Photography is a form of art. It can be a very important means of allowing the citizenry to monitor its government. And the rights of photographers have been mostly upheld.”

2. What Rights Do I Have to ;Not be Photographed?

In Canada, you have no right to control the use of your image if it’s taken for private photographic purposes, but you do have rights if the picture is taken for commercial purposes, says David Fewer, Director of the Canadian Internet Policy and Public Interest Clinic (CIPPIC).

In the United States, you have little control over how and when a photograph or video is taken of you in public, or how it is used.

“It is a difficult issue,” says Jay Stanley. “Because just as you have a First Amendment right to curse at somebody, it’s not necessarily acceptable behavior. It can be very impolite and it makes people angry. And I think taking photographs of people when they don’t want you to is similar in that respect. So part of why people react badly is because in polite company, you don’t stick a camera in someone’s face if [he or she doesn’t] want it.”

You have the right to be free from harassment, or being stalked if you’ve asked the person to stop. Someone taking your photograph does not have the right to interfere with you, for instance, by blocking a public road or sidewalk, or preventing you from entering your personal property.

Note that you cannot threaten to destroy the individual’s camera, lens, film, or any other public property. Nor can you search the individual’s bags, vehicle, or other possessions.

3. Where Can I Take the Photo or Shoot the Video?

You can take photos on public property, such as sidewalks. This includes taking photos of anything that a normal person could see from a location in a public space.

You can take photos on another person’s property, where you have permission from the owner, property manager, security guard, or other representative of the owner.

You can also take photos on property that is privately owned, but open to the public, such as malls and galleries. However, it is both wise and polite to ask permission.